1. Where a jury is given an instruction defining possession of a controlled substance
fashioned from PIK Crim. 3d 67.13-D in which the jury is advised that it may consider the
defendant's previous participation in the sale of a controlled substance as a factor in
determining whether the defendant knowingly possessed the controlled substance in the
instant case, evidence of prior convictions for possessing a controlled substance with the
intent to sell is relevant to prove some other material fact as an exception under K.S.A.
60-455.

2. A prosecutor should refrain from making statements in closing argument that may inflame
the passions and prejudices of the jury or divert the jury from deciding the case on the
evidence. However, a prosecutor may argue reasonable inferences to be drawn from the
evidence presented and may argue the factors which the jury has been instructed to
consider.

3. Multiplicity is the charging of a single offense in several counts of a complaint or
information, creating the potential for multiple punishments for a single offense. The
concept is founded on constitutional principles, specifically the Double Jeopardy Clause of
the Fifth Amendment to the United States Constitution and Section 10 of the Kansas
Constitution Bill of Rights.

4. Under the facts of this case, where a defendant possessed one plastic bag containing
marijuana, it is held it was multiplicitous to split that single offense into two counts of
possession of marijuana with the intent to sell and possession of drug paraphernalia based
on the plastic bag in which the marijuana is contained.

Appeal from Lyon District Court; MERLIN G. WHEELER, judge. Opinion filed July 22,
2005. Affirmed
in part and reversed in part.

JOHNSON, J.: Julian Castillo appeals from his jury convictions for possession of
marijuana with the intent to sell within 1,000 feet of a school, possession of drug paraphernalia,
and possessing drugs without a drug tax stamp. Castillo presents three challenges: (1) the prior
crimes evidence was not sufficiently similar to the current crime to be relevant on the issue of
intent and did not apply to the issue of knowledge; (2) the prosecutor's comments in closing
argument invoked invidious stereotypes which denied Castillo a fair trial; and (3) the possession
of drug paraphernalia charge, based on the clear plastic bag which held the marijuana, was
multiplicitous with the possession of marijuana charge. We reverse the possession of drug
paraphernalia conviction and affirm the remaining convictions.

On April 9, 2003, an individual, who was later identified, contacted the police to say that
she had recently left a residence where she had purchased marijuana from Julian Castillo. Police
obtained and executed a search warrant at the residence described by the informant. The usual
residents of the searched house were Castillo, his brother Ricardo, his sister-in-law Maria
Suarez-Vega, and her three children. However, at the time of the search, Ricardo was in jail.

As part of the search, an officer asked Castillo for the key to open a padlock which
secured an unattached garage. Castillo complied with the request by handing the officer a key
chain full of keys and pointing out the padlock key. In a small refrigerator inside the garage, the
officer discovered a brown shirt covering a clear plastic bag containing green vegetation, which
was later identified as 130.15 grams of marijuana. Castillo said that he had never seen the
vegetation before but believed that it belonged to his brother's friend. A jury convicted Castillo on
all counts.

K.S.A. 60-455 EVIDENCE OF PRIOR CRIMES

The district court permitted the State to introduce journal entries reflecting Castillo's two
prior convictions for possession of cocaine with the intent to sell, deliver, or distribute the drug.
The evidence was admitted pursuant to K.S.A. 60-455, which reads:

"Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a
specified
occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the
basis for an inference that the person committed another crime or civil wrong on another
specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when
relevant to prove some other material fact including motive, opportunity, intent, preparation,
plan, knowledge, identity or absence of mistake or accident."

To admit prior crimes evidence under K.S.A. 60-455, three requirements must be met: (1)
the evidence must be relevant to prove one of the facts specified by statute; (2) the fact must be a
disputed, material fact; and (3) the probative value of the evidence must outweigh its potential
prejudice. If the three requirements are met, the standard for appellate review is whether the court
abused its discretion. State v. Boorigie, 273 Kan. 18, 34, 41 P.3d 764 (2002).

The jury was instructed that the evidence tending to prove that Castillo committed other
crimes was to be considered solely for the purpose of proving the defendant's intent or
knowledge. Castillo first argues that, because the district court relied on the statutorily designated
facts of knowledge and intent, we are restricted to those issues. He cites to State v.
Vinyard, 32
Kan. App. 2d 39, 46, 78 P.3d 1196 (2003), rev. denied 277 Kan. 927 (2004), which
cited to State
v. McCorgary, 224 Kan. 677, 686, 585 P.2d 1024 (1978), for the proposition that an
erroneous
admission of evidence under one K.S.A. 60-455 exception is not rendered harmless merely
because the evidence would have been admissible under another exception. However,
McCorgary
did not say that an appellate court cannot consider whether another 60-455 exception might
apply, but rather the holding is that the applicability of another exception does not always render
harmless the erroneous admission upon an inapplicable exception.

Castillo contends that here, knowledge was not in issue, but concedes that intent was an
issue. We note that the concession that intent was a disputed material fact may not have been
totally supported by precedent. See State v. Capps, 33 Kan. App. 2d 37, 41, 99 P.3d
138 (2004)
(intent not a disputed material fact where defendant/passenger denied knowing that automobile
contained contraband); State v. Davidson, 31 Kan. App. 2d 372, Syl. ¶ 4, 65
P.3d 1078 (2003)
("A defendant is required to have asserted an innocent explanation for charged conduct before
intent will be considered a disputed material issue and K.S.A. 60-455 evidence admitted to
demonstrate its existence.").

With respect to knowledge, Castillo acknowledges the existence of Kansas Supreme
Court cases in which the court permitted the admittance of prior drug convictions where the
defendant denied knowing about the drugs. See, e.g., State v. Tolson,
274 Kan. 558, 561-66, 56
P.3d 279 (2002) (prior drug acts admitted to prove knowledge, motive, and plan after the
defendant was charged with felony murder committed while attempting to commit or in flight
from the crime of sale of marijuana); State v. Graham, 244 Kan. 194, 196-98, 768
P.2d 259
(1989) (prior narcotic convictions were admitted to show knowledge, intent, and absence of
mistake or accident after the defendant was charged with possession of marijuana,
methamphetamine, and cocaine); State v. Faulkner, 220 Kan. 153, 155-58, 551 P.2d
1247 (1976)
(court upheld the admittance of a prior conviction of possession of a controlled substance with the
intent to sell to prove knowledge, intent, and absence of mistake when the current charge was for
possession of a controlled substance). Castillo contends these cases misconstrue the nature of the
knowledge exception.

Castillo makes an enticing argument. It is often difficult to shoehorn relevant prior crimes
evidence into the definition of one of the specifically listed exceptions. One could argue that the
overarching purpose of the evidence that Castillo committed the crime of cocaine possession with
the intent to sell on specified prior occasions was to prove his disposition to deal drugs and
thereby create the inference that it was he who possessed the marijuana with intent to sell it. Such
character propensity reasoning is the very thing that is prohibited by K.S.A. 60-455. However, we
are mindful of our duty to follow Supreme Court precedent. See State v. Jackson, 30
Kan. App.
2d 288, 299, 41 P.3d 871 (2002).

The State relies heavily on the fact that this case presented a situation in which Castillo
was in nonexclusive possession of the premises upon which a controlled substance was found. We
agree that the evidence established that Castillo had a level of control over the premises where the
drugs were found, albeit the control was not to the exclusion of others. Thus, the nonexclusive
possession circumstance impacts on the relevancy of the prior crimes evidence. The district court
gave the jury an instruction on the definition of possession of a controlled substance, which was
taken directly from PIK Crim. 3d 67.13-D and which contained the following paragraph:

"When a defendant is in nonexclusive possession of the premises upon which a
controlled substance is found, it cannot be inferred that the defendant knowingly possessed the
controlled substance unless there are other circumstances linking the defendant to the controlled
substance. Factors you may consider in determining whether the defendant knowingly possessed
the controlled substance include:

1. Defendant's previous participation in the sale of a controlled substance;

2. Defendant's proximity to the area where the controlled substance was found;
and,

3. Proximity of defendant's possessions to the controlled substance."

Therefore, Castillo's previous participation in the sale of a controlled substance was
declared to be a factor for the jury to consider in determining whether Castillo possessed the
marijuana. Regardless of which K.S.A. 60-455 exception we deem applicable, Castillo's prior
convictions for possession of a controlled substance with intent to sell it are obviously relevant
under the possession instruction. Castillo denied that he possessed the marijuana, making the issue
a disputed material fact.

After conceding that intent was in issue, Castillo argued that evidence of convictions for
possessing cocaine with intent to sell was too dissimilar to the charge of possessing
marijuana
with intent to sell and, therefore, did not satisfy the requirement that the prior crimes
evidence be
more probative than prejudicial. The suggestion is that evidence of defendant's having possessed
one type of drug is not relevant to defendant having possessed another type of drug. We disagree.
"Evidence is relevant if it has any tendency in reason to prove a material fact (K.S.A. 60-401[b]),
or if it renders the desired inference more probable than it would be without the evidence.
[Citation omitted.]" Faulkner, 220 Kan. at 155. The relevancy connection is drawn
from the fact
that now, as well as previously, Castillo possessed drugs with the intent to sell them,
i.e., he is a
recidivist drug dealer. The fact that Castillo has not restricted himself to dealing in one type of
drug does not destroy the relevancy.

In short, the State met the requirements for admittance of the prior crimes evidence. The
evidence was critical for the State to combat Castillo's theory of defense, i.e.,
somebody else with
access to the garage possessed the marijuana. We decline to find that the district court abused its
discretion in admitting the journal entries of Castillo's prior convictions.

PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT

Castillo claims the prosecutor committed misconduct during his closing argument, when
he argued:

"Take another hypothetical situation. You have two sons. One's 13 and one's five.
You
have kind of a small house so they have to share a room . . . . You clean the room and find a
Playboy magazine sitting in a drawer. Now, who do you suspect is the proprietor or the owner of
the Playboy magazine? Is it going to be your five-year-old or 13-year-old son, who is verging on
adolescence? That's not very difficult to figure out, and we suggest to you the same thing is
applicable in this case. Did Mrs. Vega, the mother of three who was the lessee of the house and
knew nothing--said she knew nothing about that residence, was she the possessor of that
marijuana or was the defendant?"

Castillo did not object to the comments, but our standard of review is the same, regardless
of whether an objection was made at trial. Reversible error based on prosecutorial misconduct
must show the alleged error denied the defendant his or her right to a fair trial under the
Fourteenth Amendment. State v. Davis, 275 Kan. 107, 121-22, 61 P.3d 701 (2003).
We use the
now familiar two-step process of first considering whether the comments were outside the wide
latitude for language and manner that a prosecutor is allowed when discussing the evidence; then,
if so, we decide whether the prosecutor's remarks constitute plain error, i.e., whether
the
statements are so gross and flagrant as to prejudice the jury against the defendant and deny the
defendant a fair trial, requiring reversal. 275 Kan. at 121. Factors to consider under the second
step are whether the comments show ill will by the prosecutor, whether the evidence against the
defendant was so overwhelming that the prosecutor's misconduct had little or no likelihood to
have changed the result of the trial, and whether the trial court sanctioned the comment.
State v.
Scott, 271 Kan. 103, 115, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001).

During closing arguments, a prosecutor should refrain from making statements that may
inflame the passions and prejudices of the jury or divert the jury from deciding the case on the
evidence. The prosecutor may not introduce or comment on facts outside of the evidence
presented, but reasonable inferences may be drawn based on the evidence and considerable
latitude is allowed in discussing it. State v. Duke, 256 Kan. 703, 719-20, 887 P.2d
110 (1994).

Evidence was presented to establish the facts argued by the prosecutor, e.g.,
that Maria
was the mother of three children and that she denied having any knowledge of the marijuana.
Evidence was also presented that Castillo had previously been convicted of possessing cocaine
with the intent to sell. Once the decision is made to permit the prior crimes evidence as a factor to
be considered in determining a nonexclusive possession case, the State should be permitted to
argue the reasonable inferences to be drawn from that evidence. The State did not exceed the
bounds of fair argument.

MULTIPLICITY

The possession of drug paraphernalia charge was based upon the clear plastic bag which
held the marijuana. Castillo argues that his convictions for possession of marijuana and possession
of drug paraphernalia are multiplicitous, because the plastic "bag was an inherent part of the
normal method of possession of marijuana." The question of whether convictions are
multiplicitous is one of law and, therefore, is subject to unlimited review. State v.
Robbins, 272
Kan. 158, 171, 32 P.3d 171 (2001).

"'Multiplicity is the charging of a single offense in several counts of a complaint or
information. The primary concern with multiplicity is that it creates the potential for multiple
punishments for a single offense.'" State v. Schuette, 273 Kan. 593, 600, 44 P.3d 459
(2002)
(quoting State v. Garcia, 272 Kan. 140, 143, 32 P.3d 188 [2001]). The concept is
founded on
constitutional principles, specifically the "Double Jeopardy Clause of the Fifth Amendment of the
United States Constitution and section 10 of the Kansas Constitution Bill of Rights."
Robbins,
272 Kan. at 171.

The State points to K.S.A. 2004 Supp. 21-3107(1), which specifically permits the
charging of more than one crime in separate counts for the same conduct, unless one of the
exceptions of K.S.A. 2004 Supp. 21-3107(2) applies. Those exceptions include the circumstance
where one count is a lesser included offense of another count or where all of the elements of one
crime are identical to some of the elements of another charged crime. Thus, although our
constitutions prohibit the splitting of a single offense into several counts, our statutes permit
multiple counts if "'a single transaction may constitute two separate and distinct offenses.'"
Robbins, 272 Kan. at 171 (quoting State v. Vontress, 266 Kan. 248, 256,
970 P.2d 42 [1998]);
see State v. Mincey, 265 Kan. 257, 263, 963 P.2d 403 (1998). Decisions making that
distinction
have not always left a clear road map for analyzing multiplicity. See Garcia, 272 Kan.
at 142
(multiplicity "has been a highly confusing subject in Kansas law, and our prior cases have not
always been clear").

Our courts have utilized an elements test. "The test to determine whether the charges in a
complaint or information are multiplicitous is whether each offense requires proof of an element
not necessary to prove the other offense. If so, the charges stemming from a single act are not
multiplicitous. [Citation omitted.]" State v. Stevens, 278 Kan. 441, 447, 101 P.3d
1190 (2004); cf.State v. Groves, 278 Kan. 302, 95 P.3d 95 (2004) (applying single act of violence
test, rather than
elements test).

The jury was instructed that, to find Castillo guilty of the paraphernalia charge, the State
had to prove: "That Mr. Castillo knowingly possessed with the intent to use drug paraphernalia,
to-wit, a clear plastic bag, to pack, repack, sell or distribute marijuana." It is not unlawful to
possess a clear plastic bag; that possession becomes a crime only when coupled with an intent to
use the bag to pack, repack, sell, or distribute marijuana. Here, the State's proof of that intent was
that the bag was actually being used to hold the marijuana which Castillo intended to sell.

Granted, our Supreme Court has opined that "'[m]ultiplicity does not depend upon
whether the facts proved at trial are actually used to support conviction of both offenses charged;
rather, it turns upon whether the elements of proof necessary to prove one crime are also
necessary to prove the other. [Citations omitted.]'" 272 Kan. at 171 (quoting
Vontress, 266 Kan.
at 256). However, when the drug paraphernalia is rendered unlawful because of its intended use,
that crime would logically merge into the primary offense when the paraphernalia is actually
employed in its intended use. Cf.Capps, 33 Kan. App. 2d at 44-45
(suggesting it is impermissible
to split manufacturing methamphetamine into necessary component parts of possessing ephedrine
with intent to manufacture methamphetamine, etc.). For example, cigarette paper that is rolled
around marijuana to form a joint no longer maintains its status as drug paraphernalia, but rather
has become part of the marijuana being possessed. So, here, the clear plastic bag was no longer
being possessed with intent to use it to pack marijuana in the future; it became an integral
component of the offense of marijuana possession. Castillo possessed one bag of marijuana.
Splitting that single offense into two counts was constitutionally impermissible. The possession of
drug paraphernalia conviction is reversed.